Karnataka High Court
Smt. Manjula K.L vs Sri. Rajenthiran A.P on 3 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 1281 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 1281 OF 2023 (MV-D)
BETWEEN:
1. SMT. MANJULA K.L.,
W/O. LATE. MURTHY G.
AGED ABOUT 36 YEARS,
2. MASTER. THILAK M.,
S/O. LATE MURTHY G.,
AGED ABOUT 17 YEARS,
3. MASTER. VISHAL M,
S/O. LATE MURTHY G.,
AGED ABOUT 14 YEARS,
PETITIONER NO.2 AND 3 ARE MINOR IN AGE,
Digitally signed by HENCE THE REPRESENTED BY THEIR MOTHER AS A
VEDAVATHI A K NATURAL GUARDIAN AND NEXT FRIEND.
Location: High
Court of Karnataka
4. SMT. HANUMAKKA
W/O GANGA MARIYAPPA S.,
AGED ABOUT 65 YEARS,
5. SRI. GANGA MARIYAPPA S,
S/O. LATE. SIDDAPPA,
AGED ABOUT 76 YEARS,
ALL ARE R/AT NO.21, 2ND MAIN ROAD,
MOHAN KUMAR NAGAR,
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MFA No. 1281 of 2023
BANGALORE NORTH, YESHWANTHAPURA,
BANGALORE - 560 022.
(MOB NO.9880631808)
...APPELLANTS
(BY SRI. TEJAS N., ADVOCATE)
AND:
1. SRI. RAJENTHIRAN AP,
S/O. PALANISAMY,
AGE ABOUT MAJOR,
R/AT NO.4/135B, NASUVANKADU,
MAVELIPALAYAM POST, SANKARI TALUK,
SALAM DISTRICT, TAMIL NADU - 637 301.
(R.C. OWNER OF THE ASHOK LEYLAND
LORRY BEARING NO. TN-52-K-2878)
2. THE REGIONAL MANAGER,
UNITED INDIA GENERAL INSURANCE CO. LTD.,
REGIONAL OFFICE, MOTOR TP, HUB,
KRISHI BHAVANA, 5TH AND 6TH FLOOR,
HUDSON CIRCLE, BANGALORE - 560 001.
(POLICY NO.17070331120P104088123
POLICY PERIOD FROM 22-07-2020 TO 21-07-2021)
...RESPONDENTS
(BY SRI. K.N.SRINIVASAN, ADVOCATE FOR R2;
R1 SERVED, BUT UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 14.12.2022 PASSED IN MVC NO. 2576/2021 ON
THE FILE OF THE VIII ADDITIONAL SCJ AND ACMM, MEMBER,
MACT, BENGALURU SCCH-5, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 1281 of 2023
JUDGMENT
This appeal is filed by the petitioners-claimants against
the judgment and award passed by the VIII Additional Small
Causes Judge and Motor Accident Claims Tribunal, Bengaluru,
in MVC No.2576/2021 dated 14.12.2022.
2. Though this appeal is posted for Admission, with the
consent of the learned counsel for the parties, the same is
taken up for final disposal.
3. Heard the arguments of the learned counsel for the
appellants and learned counsel for the respondent - insurance
company.
4. The appellants are the petitioners and the respondents
are the respondents before the Tribunal. The rank of the parties
is retained for the sake of convenience.
5. The petitioners filed claim petition at Section 166 of
MVC seeking compensation after the death of one Murthy G.,
who is the husband of petitioner No.1 in the road accident that
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occurred on 16.06.2021. The petitioners sought the
compensation of Rs.1 crore for the death of the deceased.
6. It is alleged in the petition that on 16.06.2021 at
about 7.30 p.m., the deceased was moving on his motorcycle
bearing registration No.KA-03-X-7955 on Thumkur, Bangalore,
NH-48, near Nadigir Institution of Engineering College,
Madhavara, Bangalore City. At that time, a lorry bearing
No.TN-52-K-2878 came from backside, in a high speed and in
rash and negligent manner, and dashed against the deceased.
Due to the impact, the deceased fell down and sustained the
grievous injuries. He was shifted to Abhay Vasishtha Hospital
and thereafter, to various other hospitals. During treatment,
the deceased succumbed to the injuries. The deceased was
earning the salary of Rs.47,467/- per month and therefore, the
petitioners sought compensation under the various other
heads.
7. In pursuance of notice, respondent No.1 placed ex-
parte, respondent No.2-insurer filed statement of objections
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denying the accident, age, income and death of the deceased
and accordingly, prayed for dismissal of the petition.
8. The Tribunal framed the following issues:
1. Whether the petitioners prove that,
deceased Late.Murthy G. died in the motor vehicle
accident that occurred on 16.06.2021 at about
7.30p.m. near Tumkur-Bangalore NH-48 Road,
Nadigir Engineering College, Madavara, Bengaluru
City, due to rash and negligent driving of one
Ashok Leyland Lorry bearing Reg.No.TN-52-K-
2878 by its driver, as mentioned in claim petition?
2. Whether the Petitioners are entitled for
compensation? If so, how much and from whom?
3. What order or award?
9. In order to prove the case, petitioner No.1 was
examined as P.W.1 and another witness was examined as
P.W.2 and got marked 20 documents as per exhibits P.1 to
P.20. On behalf of respondents, Senior Scientific Officer,
Forensic Lab, was examined as R.W.1, CPI Amrutur Circle,
Kunigal was examined as R.W.2 and respondent No.2 was
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examined as R.W.3 and got marked four documents as per
exhibits R.1 to R.4.
10. After hearing the parties, the Tribunal answered the
issue Nos.1 and 2 partly in the affirmative and awarded the
compensation of Rs.57,66,741/- with interest at 6% for annum
from the date of petition till its realization. The Tribunal further
fixed the liability of 75% on the driver of the lorry and 25% on
the deceased as contributory negligence.
11. Being aggrieved by the judgment and award passed
by the Tribunal in respect of quantum of compensation as well
as fixing the contributory negligence, the petitions-claimants
are before this Court in this appeal.
12. The learned counsel for the appellants has contended
that the Tribunal has committed error in holding that there is
contributory negligence between the driver of the lorry and
deceased motorcycle and the accident occurred only because of
the motorcycle and there is no damage to the lorry. There is
no eyewitness examined by the respondent-insurance
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company. Therefore, the question of taking contributory
negligence does not arise. In support of his contentions, the
learned counsel for the appellants has relied upon the judgment
of the Hon'ble Supreme Court in the case of DINESH KUMAR J
ALIAS DINESH J Vs. NATIONAL INSURANCE COMPANY
LIMITED AND OTHERS reported in (2018)1 SCC 750 and
contended that deducting all the other allowances is not
appropriate and only the professional tax would be allowed for
deduction. Therefore, prayed for the enhancement of
compensation.
13. Learned counsel for the respondent-Insurance
Company has contended that there is no visible damage to the
lorry as it was suspected as to whether the offending lorry was
involved in the accident. Therefore, the Tribunal has rightly
held the contributory negligence on the part of the rider of the
motorcycle. Therefore, there is no need to interfere with the
judgment and award passed by the Tribunal and accordingly,
prayed for dismissal of the appeal.
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14. Having heard the learned counsel appearing for the
parties, perused the records.
15. After hearing the learned counsel for the parties, the
points that arise for consideration are:
(i) Whether the Tribunal is justified in
holding the contributory negligence between the
driver of the lorry and the rider of the motor cycle
in the ratio of 75:25 ?
(ii) Whether the petitioners are entitled for
the enhancement of compensation ?
16. Petitioner No.1 is examined as P.W.1 and got marked
20 documents such as FIR, complaint, panchanama, sketch,
inquest Panchanama PM report, copy of the notice under
section 133 of the MV Act, copy of the IMV report. Exhibit P10
- the copy of charge sheet, reveals that the accident had
occurred due to the rash and negligent driving of the driver of
the lorry. An FIR was lodged against the driver of the lorry and
the police have filed charge sheet against the driver of the lorry
holding that there is negligence on the part of the driver of the
lorry. But, the insurance company has taken the contention
that there is no damage to the lorry. Therefore, the Tribunal
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suspected the accident that there is no visible damage to the
lorry and held 75% : 25% towards contributory negligence
between the driver of the lorry and the vehicle of the deceased.
17. The learned counsel further contended that there is
no eye witness or driver of the lorry was examined in respect of
the incident. The charge sheet filed against the lorry was not
challenged. The Tribunal held that there was suspicion in
respect of the accident by the driver of the lorry and negligence
on the part of the deceased. Therefore, fixing 25% negligence
on the rider of the deceased motor vehicle is not correct.
Therefore, I am of the view that the accident was occurred due
to rash and negligence driving of the lorry and fixing liability
on the deceased that is rider of the motorcycle is liable to be
set aside.
18. As regards the compensation, it is well settled that in
case of the government employee, except the professional tax
there would be no other deductions. The deceased was serving
as civil police (head constable) drawing a salary of Rs.47,467/-
per month. This would be the total income of the deceased.
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Except the deduction of Rs.1,50,000/- towards investment
under Section 80C of the I.T. Act and Rs.50,000/- towards
statutory deductions, he will not come under the tax net.
Hence, no other deductions would be taken place. Such being
the case, the deceased will not have any other deductions
except the professional tax. Therefore, the Tribunal has
committed an error in deducting the other allowances in the
salary and taking the net salary as his income. Therefore, I
propose to take Rs.47,467/- as the income of the deceased and
after deducting Rs.200/- towards professional tax, actual
income of the deceased would come to Rs.47,267/-. If 30%
towards future prospectus is taken, the income would be
Rs.61,447/-. The deceased was having three dependents that
is his wife and two children apart from his parents. Therefore, if
one-fourth of the income is deducted, the net income would
come to Rs.46,085/-. Then, the loss of dependency would be
Rs.77,42,317/- (Rs.46,085/- x 12 x 14).
19. The Tribunal has awarded Rs.2 lakhs towards
consortium to the claimants. There is no reason to interfere
with the said award and the same is kept as it is.
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20. The Tribunal has awarded Rs.32,893/- towards
medical expenses, which is on the basis of the bills and hence,
the same is retained.
21. The Tribunal has also awarded Rs.30,000/- towards
loss of estate and funeral expenses and the same is retained.
22. In all, the claimants are entitled for modified
compensation as tabulated below:
Sl.
Heads of compensation Amount in `
No.
1 Loss of dependence 77,42,448-00
2 Filial consortium 2,00,000-00
3 Medical expenses 32,893-00
4 Loss of estate and funeral expenses 30,000-00
Total 80,00,341-00
23. Now, the question is whether the Court can award
more than Rs.50 lakhs, when the claimants have sought only
Rs. 14,83,259/- in the appeal memo.
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24. Further, the Hon'ble Supreme Court in the case of
MONA BAGHEL AND OTHERS Vs. SAJJAN SINGH YADAV
AND OTHERS in SLP (C) No.29207/2018 and KAMALA BAI
AND OTHERS Vs. DIVISIONAL MANAGER, K.S.R.T.C.
reported in 2019 SCC Online KAR 3502, has held that the
Court cannot restrict to the claim made by the claimants and
even the Court can award more than what is sought by the
claimants. Such being the case, this Court cannot restrict to
the claim made by the claimants and can award just and
reasonable compensation.
25. Accordingly, the following order is passed:
(i) The appeal is allowed in part.
(ii) The appellant-claimants are entitled for the
compensation of Rs.80,00,341/- as against the award of
Rs.57,66,741/- passed by the the VIII Additional Small Causes
Judge and Motor Accident Claims Tribunal, Bengaluru, in MVC
No.2576/2021 dated 14.12.2022.
(iii) The appellants are entitled to the interest at the
rate of 6% per annum on the enhanced compensation, from the
date of claim petition till the date of realisation.
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(iv) The respondent-insurance company is directed to
deposit the enhanced compensation with interest at 6% per
annum, within 60 days from the date of receipt of a copy of the
award.
(v) The apportionment made by the Tribunal is hereby
confirmed.
(vi) Draw the award accordingly.
Sd/-
JUDGE
CS
CT:SK
